Prem Prakash, J.
1. The Nagar Mahapalika, Lucknow, has obtained this rule in revision, Under Section 439 of the old Code of Criminal Procedure, to enhance the sentences awarded to P. Gurnani and Kanhaiya Lai Gurnani Under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 (to be hereinafter referred to as the Act). Each of them has been sentenced t0 a fine of Rs. 125/- and simple imprisonment till rising of the court by Sri V.N. Awasthi, Magistrate 1st Class, Lucknow.
2. The case of the prosecution was that P. Gurnani was the proprietor of the shop carrying on the business under the name of M/s. Gurnani Provisions Stores and Kanhaiya Lal Gurnani used to sell food articjes at the said shop for and on behalf of P. G. Gurnani, On 31st August, 1969 Kanhaiyalal Gurnani sold 600 grams of 'Saboo Dane Ke Phool' to the Food Inspector, Sri Krishna Mohan Srivastava (P.W. 1) for Rs. 3.25 p. The Food Inspector served the accused with the notice on Form VI intimating therein that the purchased 'Saboo Dane Ke Phool were meant for analysis by the Public Analyst. The purchased 'Saboo Dane Ke Phool' were divided into three separate phials, one of such phials was sent to the Public Analyst whose report shows that the sample sent to him was coloured with coal tar dyes, namely (J.) Rhodamine and (2) Melachite green, the use of which is prohibited by the Rules framed under the Act. The Food Inspector examined himself. The two accused acknowledged the various ingredients of the crime. P. Gurnani admitted that he was the proprietor of the business and that Kanhaiya Lai Gurnani had sold the article to the Food Inspector on his behalf. He further acknowledged that the sample of Sago flowers was taken by the Food Inspector from his shop and that it was found coloured with prohibited dyes. Acting on the pleas of guilty, coupled with the statement of the Food Inspector, the learned Magistrate came to the conclusion that offence Under Section 7(i) read with Section 16 of the Act had been brought home to both the accused. As we have already stated above, he awarded the sentence of imprisonment till the rising of the court and a fine of Rs. 125/-.
3. The revisionist contends that the sentence was in contravention of Section 16 of the Act. learned counsel for the respondents has, on the other hand, urged that the court had a discretion under the Proviso to Section 16(1) to impose a sentence of imprisonment less than six months for adequate and special reasons. We have, therefore, to see whether the case falls within (Section 16(1)(a)(i)' or falls within clause (i) or (ii) of the Proviso to the Section, as it stood before the Prevention of Food Adulteration (Amendment) Act, 1976.
4. Section 2 of the Act, as it stood before the Amendment Act contained the following definition of the term 'adulterated:
In this Act unless the context otherwise requires,
(i) 'Adulterated' an article of Food shall be deemed to be adulterated...
(j) if any colouring matter other than that prescribed in respect thereof and in amounts not within the prescribed limits of variability is present in the article....
5. When an article of food is coloured by any matter other than the colouring matter prescribed in respect thereof by Act, it is a clear- case of the article being adulterated, and it shall be deemed to be adulterated under clause (j) to Section 2(i). The proviso to Section 16(1) would not be attracted. Now, the report of the public analyst shows that the sago flowers sold by the respondents contained artificial dyes which are clearly prohibited under the rules. Rule 23 provides that addition of colouring matter except as specifically permitted is prohibited. Rule 28 specifies coal tar dyes which shall be used in food. The dyes with which the sold article had been coloured were prohibited dyes under Rule 28. That being so, the case was clearly covered by clause (j) of Section 2(i) and the article must be deemed to have been adulterated under that clause. That would exclude the applicability of the proviso to Section 16(1) since the offence in this view would be one with respect to an article of food deemed to be adulterated under clause (j) of Section 2(i). The respondents' contention invoking the liberality of the provision exacted in the proviso to Section 16(1) must in the circumstances be rejected and the minimum sentence of imprisonment for six months must have been awarded, (See Prem Ballabh v. The State (Delhi Administration) : 1977CriLJ12 . The trial court was plainly in error in not awarding the minimum sentence in conformity with Section 16 of the Act.
6. learned counsel for the respondents has endeavoured to challenge the convictions, as provided Under Section 439 (c) of the Code of Criminal Procedure. But in our opinion the contentions have no substantial merit. There was evidence of the Food Inspector showing that P, Gurnani was the proprietor of the business and that Kanhaiya Lai Gurnani had sold the sample on his behalf. The report of the Public Analyst is clear on the point that it was coloured with prohibited dyes. The Counsel has, however, relied upon the decision of the Supreme Court in the case of R. G. Pamnani v. State of Maharashtra : 1975CriLJ254 and has vigorously argued that since the Food Inspector did not obtain the quantity as required by Rule 22 and the Public Analyst had not in consequence the quantity mentioned under the Rules for analysis, no reliance can be placed in violation of the statutory provision upon the analysis done by the Public Analyst. In his submission 'Sabool Dane Ke Phool' was a 'Prepared Food1 described at Serial 14 of Rule 22 in which case the quantity of sample of food to be sent to the Public Analyst should have been at least 500 grams and not 200 grams sent to the Analyst in the present case. In our opinion the argument is not tenable.
7. 'Food' as defined by the Act before the Amendment meant any article used is food or drink for human consumption' other than drugs and water and includes- (a) any article which ordinarily enters into, or is used in the composition or preparation of human food and (b) any flavouring matter or condiments.' As it would appear from the definition of food, three classes of. articles have been brought within the definition of 'food' first any article which is used as food or drink for human consumption, secondly, any article which ordinarily enters into, or is used in the composition or preparation of human food and thirdly, any flavouring matter or condiments. Under the first category come articles which are food in themselves. i. e., they are not taken through, the agency of some other article, but may be used direct as food such is cereals, pulses, milk, cream, curd and the like. Sago is one of such articles which, can ,be used without the agency of some other article. Under the second category come those articles which cannot be strictly said to be used as 'food' In themselves, but which are used in composition or preparation of human food, such as, ghee, mustard oil and other vegetable oil or like. No one drinks mustard oil or even ghee, but they are used in the composition or preparation of food itself. Serial Item 14 of Rule 22 applied to 'prepared food'. Sago being itself a food, its products are usable as food for human consumption. That it is a food by itself is revealed by K. 29 which permits use of permitted coal tar dyes in articles, Including Sago. Sago and its products have not been specified as articles of food in Rule 22. It would, therefore, be 'food not specified' under Rule 22. In case where the article of food 'is not specified' the Rule prescribes the quantity to be sent to the Public Analyst as 200 grams only. Because in the present case 600 grams of 'Sago flower' taken from the respondents was kept in three separate phials and one of such phials was sent to the Public Analyst, there was no breach of Rule 22. The report of the Public Analyst cannot, therefore, be challenged on that score.
8. The prosecution having thus fully established the case against both the respondents under Section 16(1) and the proviso being not applicable, the trial court committed an illegality in not awarding the minimum sentence prescribed by Section 16 of the Act.
9. Counsel for the respondents have pleaded that in any event on the facts and circumstances the benefit of the provisions of the Probation of Offenders Act, 1958 should be given to them and they should not be sent to jail. The plea was not taken in the trial court but in the revisional proceedings before us the respondents swore an affidavit that on the date of the commission of the offence P. Gurnani was less than 21 years of age though in the case of Kanhaiya Lai Gurnani he was more than 21 years age on that date. Some mitigating circumstances were put forward to persuade the court to take a lenient view of the matter and extend them the benefit of the Probation of Offenders Act. The question of applying the provision of that Act to an offence under the Prevention of Food Adulteration Act came up before the Supreme Court in Isher Dass v. State of Punjab : 1972CriLJ874 where the offender was below 21 years of age. The trial Court released him Under Section 4 of the Probation of Offenders Act. The High Court in revision set aside the order and sentenced him to imprisonment as provided in Section 16 of the Act. The Supreme, Court observed that 'as regards persons under 2l years of age, however, the policy of the law appears to be that such a person in spite of his conviction under the Prevention of Food Adulteration Act, should not be deprived of the advantage of Probation of Offenders Act which is a beneficent measure and reflects and incorporates the modern approach and latest trend in penology.'
The above principle was followed in Jai Narain v. The Municipal Corporation Delhi : 1973CriLJ49 . It was held that : adulteration of 'food' being a menace to public health and the Act having been enacted with the aim of eradicating that anti-social evil, the court should not lightly resort to the provisions of Section 4 of the Probation of Offenders Act to offenders who are 21 years of age or above. The court declined to apply the provisions of the Probation of Offenders Act.
10. Ram Prakash v. State of Himachal Pradesh : 1973CriLJ593 is another case under the Act where a request was made for the application of the provisions of Probation of Offenders Act. The Supreme Court confirmed the sentence passed by the trial court, and declined to release the offenders on probation of good conduct. The distinction pointed out ,in Isher; Dass v. State of Punjab 1972 Cri LJ 874 (SC) (supra) between the offenders above 21 years of age and those below that age was maintained. The matter came up. again before the Supreme Court in P.K. Tejani v. M.R. Dange : 1974CriLJ313 where the offence involved was sale of scented, Supari. Mr. Justice Krishna Iyer after referring to the, case of Isher Dass v. State of Punjab W2 Cri LJ 874 (SC) (supra) observed that 'the rehabilitatory purpose of the Probation of Offenders Act, 1958 is pervasive enough technically , to take within its wings . n offence even under the Act.' But,a note of caution was sounded in these words:- (at p. 878 of Cri LJ).
Adulteration of food is a menace to public health. The Prevention of Food Adulteration Act has been' enacted with the aim of eradicating that anti-social evil and for ensuring purity in the articles of food. In view of the above object of the Act and the intention of the legislature as revealed by the fact that a minimum sentence of ' imprisonment for a period of six months and a fine of rupees one thousand has been prescribed the courts should not lightly resort to the provisions of the Probation of Offenders Act in the case of persons above 21 years of age found guilty of offence under the Prevention of Food Adulteration Act.
11. The following observations of the Supreme Court in their recent decision in Prem Ballabh v. The State (Delhi Administration) (1977 Cri LJ 12 (SC) (supra)'interdict, otherwise the applicability of the provisions of Probation of Offenders1 Act1 to offenders under the Prevention of Food Adulteration Act:- (at pp. 18, 19 of Cri LJ) ?
It may be pointed out that the Law Commission also in its Forty Seventh Report recommended the exclusion of applicability of the prpbationary process in case of social and economic , offences and presumably in response to this recommendation, the, Legislature has recently amended the, Prevention of Food Adulteration Act, 1954 by introducing Section 20-AA providing that nothing -contained in the Probation of Offenders, Act, 1958 or Section 360 of the Code of Criminal Procedure, 1973 shall apply to & person convicted of an offence under the Act unless that . person is under eighteen years of age. This amendment of, course would not apply in the instant case, but it shows the Legislative trend which it would not be right for the court to ignore.
12. In the instant' case the circumstances relied upon on behalf of Karihaiya Lai Gurnani being let on, probation are: (a) that there is no evidence that he himself was responsible for adulteration (b) he was according. to the prosecution not the owner of the business and (c) that already. 7 1/2 years have elapsed since the date of offence. As regards the first ground the provisions of Food Adulteration Act do not say that the person who himself adulterates the article and sells it alone is criminally, responsible under the Act. The circumstances of the accused, as also the tirieiaken in the hearing of the revision cannot., be a ground for linearity(or preferential, treatment. The respondent was only sentenced to a fine of Rs. l25/- and to imprisonment till the rising of the court, the delayed trial had not, in any manner, prejudiced him. That being so, when the mandate of Section 16.of the Act is clear and explicit and there is no room left for the discretion of the court to dilute the minimum sentence provided by the statute we find ourselves unable to give the benefit of Probation of Offenders Act to Kanhaiya Lal Gurnani.
13. Now as to P. Gurnani, it is no doubt correct that he was less than 21 years of age, on the date of commission of offence, but on 2nd February 1973 when the Magistrate found him guilty, he was not a person under the age of 21 and that being so, following the rule laid down by the Supreme Court in Ramji Missar v. State of Bihar : AIR1963SC1088 , Section 6(1) of the Act has no application to him. The Supreme Court at page 1091 handed down the law in these words: 'The object of the Act is to prevent the turning of youthful offenders into criminals by their association with hardened criminals of mature age within the walls of a prison. The method adopted is to attempt their possible reformation. instead of inflicting on them the normal punishment for their crime. If this were borne in mind it would be clear that the, age referred to by the opening words of Section 6(1) should, be that when the court Is dealing with the offender, that being 'the point1 of time when the court has to choose between the two alternatives which the Act in supersession of the normal penal law vests in it, viz., sentence the' offender to imprisonment or to apply to him the provisions of Section 6(1) of the Act. As the High Court has found that Ramji was not a person under the age of 21 on May 24, 1961, when the learned Sessions Judge found him guilty it is clear that Section 6(1) of the Act has no application to him.'
14. In the result, the revision succeeds. The, sentence passed on the two respondents. P. Gurnani and K.L. Gurnani, is enhanced Under Section 401 Cr.PC corresponding to Section 439 Cr.PC (old) to a term of six months' rigorous imprisonment and to a fine of Rs. 1,000/- each in default to suffer rigorous imprisonment for a further period of three months, under Section 7 read with 16(1) of the Prevention of Food Adulteration Act.
15. The respondents are on bail: they shall surrender to their bail bonds and serve out the unexpirefl portion of the sentence.
16. Chief Judicial Magistrate is to report compliance within six weeks.